Update to main text para 13.19, page 416:
In a fascinating speech, ‘A Matter of Life and Death’, given at Oxford on 11 October 2016[1], Baker J addressed the courts’ current approach to whether or not to permit withdrawal of clinically assisted artificial nutrition and hydration from a patient in a prolonged disorder of consciousness.
Baker J considered whether judges are the right people to make these decisions, when doctors themselves make life or death decisions in a huge number of other cases without recourse to the courts. He expressed the view that – as was said in Bland – the time would and should come when uncontentious cases would not require the involvement of the court. For now, however, ‘both medical science and the law are still evolving’, and he considered:
‘Until such time as we have greater clarity and understanding about the disorders of consciousness, and about the legal and ethical principles to be applied, there remains a need for independent oversight’
He did however concede that there is an urgent need for a more streamlined procedure. This is likely to be seen in an amended Practice Direction 9E.
This part of Baker J’s speech attracted criticism from two distinguished clinicians in this field. Professor Lynne Turner-Stokes[2] has addressed the mortality of cases of prolonged disorders of consciousness, describing a particular case (where the patient had descended into coma, rather than PVS or MCS) on which CANH was withdrawn without an application being made to the court[3]. Professor Derick Wade has spoken out about the problems entailed in court applications including delay and ‘an overwhelming concern with evaluating awareness’ rather than on the best clinical decision for the patient. Prof Wade calls for a return of ownership of these decisions to clinical teams[4].
The debate will no doubt continue, but for the moment, the position remains that in a case where withdrawal of CANH from a patient in PVS or MCS is contemplated, and there is no valid and applicable advanced decision to refuse treatment or lasting power of attorney, an application to court is required.
Footnotes
[2] A matter of life and death: controversy at the interface between clinical and legal decision-making in prolonged disorders of consciousness
[3] British Medical Journal available on open access at http://bit.ly/2llNURL
[4] https://twitter.com/derickwaderehab, 7 December 2016